Sunday, November 23, 2008

"Willfully"

A recent case from North Carolina highlights the role mens rea – or intent – plays in a criminal prosecution.

The case is State v. Ramos, 2008 WL 4906318 (N.C. App. 2008), and here, according to the court, are the facts that resulted in charges against being filed against Ms. Ramos:

Defendant was hired as a community outreach coordinator by the Latin American Resource Center (`LARC’) on 15 May 2005. Her supervisor was LARC's director and founder, Aura Camacho-Maas. . . .

One of [her] responsibilities was to write grant proposals. . . . One . . . was supposed to be completed by 1 August. . . . On 1 August, the proposal was not complete, and defendant and Camacho-Maas had to work until midnight to get the proposal done.

Camacho-Maas assigned defendant a second proposal. . . [It] required [her] to access computer files related to LARC's teacher apprenticeship program (`TAP’). When . . . the proposal was still not completed, Camacho-Maas and defendant . . . had to work on the grant proposal together.

Camacho-Maas told defendant she was being terminated because she was unable to do the work required for her position. When Camacho-Maas asked defendant for her keys . . . defendant refused to hand them over until she received her paycheck. Camacho-Maas explained . . . she would receive her paycheck at the end of the month, and defendant left the building. Camacho-Maas . . . told the receptionist defendant had been terminated and was not to enter the building without Camacho-Maas being present. . . .

[A short time later,] Camacho-Maas realized the receptionist and defendant were . . . coming out of defendant's office. Camacho-Maas . . . went into defendant's office, sat down at defendant's computer, and discovered the TAP files were missing from LARC's server. Camacho-Maas had seen the TAP files on the server earlier that day. . . . Only LARC employees have access to the TAP files, and Camacho-Maas had not authorized anyone to move or remove the TAP files. Camacho-Maas called the police. . . .

State v. Ramos, supra.

When the detective assigned to the case met with Ms. Ramos, she admitted she had

copied files onto her flash drive. Detective Williams asked defendant to accompany him to the police station so he could copy the contents of the flash drive. A member of the Raleigh Police Department's cybercrimes unit found approximately 304 LARC files on defendant's flash drive, 80% of which were TAP files that were `either deleted or deleted and overwritten.’

State v. Ramos, supra.

Ms. Ramos was charged with damaging a computer in violation of a North Carolina statute: “It is unlawful to willfully and without authorization alter, damage, or destroy a computer, computer program, computer system, computer network, or any part thereof.” North Carolina Statutes § 14-455(a). At her trial on the charge, the court gave the jury this instruction on what was required to find her guilty of the charge:

The defendant, Geraldine Lewis Ramos, has been charged with the misdemeanor of damaging a compute [sic] system or computer network, or any part thereof.

For you to find the defendant guilty of this offense the State must prove two things:

First, that the defendant damaged a computer system or computer network or any part thereof by deleting a file or files from the computer system or computer network.

Second, that the defendant did so without authorization. A person is without authorization when although the person has the consent or permission of owner [sic] to access a computer system or computer network the person does so in a manner which exceeds the consent or permission.

If you find from the evidence beyond a reasonable doubt that on or about August the 15th, 2005 the defendant, without authorization, damaged a computer system or computer network, it would appeal [sic] your duty to return a verdict of guilty.

State v. Ramos, supra.

She was convicted and appealed, arguing that the instruction was insufficient because it didn’t tell the jury they had to find she acted “willfully” in order to convict her. State v. Ramos, supra. The prosecution argued that there was no error because the court instructed the jury they had to find that she acted “without authorization.” According to the prosecution, “without authorization” and “willfully” are synonymous. State v. Ramos, supra. The North Carolina Court of Appeals did not agree:

Our General Assembly defined `authorization for purposes of computer-related crimes . . . as meaning `having the consent or permission of the owner, or of the person licensed or authorized by the owner to grant consent . . . to access a computer, computer system, or computer network in a manner not exceeding the consent. . . `[W]ilful’ . . . means the wrongful doing of an act without justification or excuse, or the commission of an act purposely and deliberately in violation of law.’ . . . One may act `without authorization,’ but still not act willfully. For example, a person who accidentally deletes files is not acting willfully, but has deleted the files without authorization.

State v. Ramos, supra.

The issue of willfulness was essential in deciding whether Ms. Ramos was guilty of the charge because, as she explained, she believed Camacho-Maas had authorized her

to delete files amounting to her own work. Defendant testified that, at the time of her termination, defendant told Camacho-Maas, `since my work is no good I guess you won't mind if I take my work off computer [sic].’ According to defendant, Camacho-Maas responded, `. . . that the work was not good, and it was no consequence.’ Defendant testified that Camacho-Maas followed defendant into her office while defendant was deleting the files. Defendant testified Camacho-Maas “didn't say anything, but she knew what I was doing at that time, reason [sic] I walked back down to the room.” Defendant claimed that the only files that she deleted were:

[t]he . . . research that I had done for the curriculum. I deleted part of the grant which was the grant that I had written. I think that was about three, three files, but it was not the TAP file.

TAP file was in the server. It was a server and, in order for, to go into the server. She had already worked in the server, so I could not [sic] to go into the TAP file.

State v. Ramos, supra.

From this, the North Carolina Court of Appeals held it was error for the trial court not to have instructed the jury on the issue of willfulness:

Based on this testimony, the jury could reasonably find that defendant intended only to delete files she believed -- according to the State, incorrectly -- Camacho-Maas had consented to her deleting. . . . A jury could further find, based on defendant's testimony that she did not intend to delete the TAP files and did not believe she could enter the TAP files while Camacho-Maas was working on them, that any deletion of the files was accidental. Thus, the record contains evidence that would allow a jury to find that she deleted files without authorization, but not willfully. The trial court's failure to include willfulness in its instructions cannot, therefore, be deemed harmless error.

State v. Ramos, supra. Personally, I cannot understand why the trial court did not instruct the jury on willfulness. It is a basic, historic principle of criminal law that you cannot be convicted of a crime unless you acted with the mens rea – the criminal intent – required for the commission of that crime.